Kavitha v. P. Senthilkumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 25.10.2016 CORAM :
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM TR.CMP(MD)No.158 of 2016 and C.M.P(MD)No.2711 of 2016 Mrs.Kavitha ... Petitioner vs.
Mr.P.Senthilkumar ... Respondent Petition filed under Section 24 of the Civil Procedure Code, to withdraw the case on the file of the learned Subordinate Judge, Pudukkottai in HMOP.No.50 of 2016 and transfer the same to the learned Principal Subordinate Judge, Tambaram. For Petitioner : Mr.S.Rajaprabu For Respondent : Mr.R.Sreenivasan
ORDER
The marriage between the petitioner and the respondent was solemnized on 01.09.2013 as per the Hindu rites and customs. Out of the wedlock, a female child was born and now aged about 11⁄2 years. Due to the strained relationship between the parties, the respondent filed HMOP.No.50 of 2016 before the Subordinate Court, Pudukkottai. The contention of the petitioner is that now she is living with her parents at Tambaram, Chennai and is not in a position to spend and travel to Pudukottai to defend the case along with her child. The petitioner is living with the support of her parents and not in a position to bear the cost for each and every hearing from Chennai to Pudukottai. The respondent filed the divorce petition knowing the fact that the petitioner will not be in a position to travel along with 11⁄2 year old child and filing of the divorce petition itself is an idea to harass the petitioner.
2.The respondent contended that the allegations set out in this petition deserves no consideration since the petitioner is very well in a position to travel from Chennai to Pudukottai and the present petition is devoid of merits. Further, the respondent contended that the petitioner herself left the matrimonial home at her own volition and not at the instance of the respondent. The
respondent also contends that there is a life threat if he appears before the Principal Sub Court, Tambaram.
3.The principles with regard to transfer petitions, more specifically, in the matters of matrimonial cases, are in favour of women and the decisions of the High Court of Madras, in the following cases interpreting Section 19(iii)(a) of the Hindu Marriage Act, 1955, also confirm that position:- (i)The Hon'ble Division Bench of the High Court of Madras in W.A.No.1181 of 2009, dated 09.07.2010 has held as follows:- ''21. The domicile or citizenship of the opposite party is immaterial in a case like this. In case the marriage was solemnized under Hindu Law marital relationship is governed by the provisions of the Hindu Marriage Act. Therefore, Section 19 has to be given a purposeful interpretation. It is the residence of the wife, which determines the question of jurisdiction, in case the proceeding was initiated at the instance of the wife.
22. While considering a provision like Section 19 (iiia) of the Hindu Marriage Act, the objects and reasons which prompted the parliament to incorporate such a provision has also to be taken note of. Sub Clause (iii-a) was inserted in Section 19 with a specific purpose. Experience is the best teacher. The Government found the difficulties faced by women in the matter of initiation of matrimonial proceedings. The report submitted by the Law Commission as well as National Commission for Women, underlying the need for such amendment so as to enable the women to approach the nearest jurisdictional court to redress their matrimonial grievances, were also taken note of by the Government. Therefore such a beneficial provision meant for the women of our Country should be given a meaningful interpretation by Courts.''
(ii)In yet another case in TR.CMP.Nos.138 and 139 of 2006, dated 30.08.2006, the High Court of Madras has considered the following judgments of the Hon'ble Supreme Court:- ''16.In AIR 2000 SC 3512 (1) (Mona Aresh Goel vs. Aresh Satya Goel), when the wife pleaded that she was unable to bear the traveling expenses and even to travel alone and stay at Bombay, the Supreme Court ordered transfer of proceedings.
In 2000 (10) SCC 304, the Honourable Supreme Court has held that where the petitioner's wife has pleaded lack of money, the same has to be considered.
In 2000 (9) SCC 355, the wife has filed a petition to transfer the proceedings initiated by the husband for divorce, at Bombay. The place of residence of the wife was at Jaipur, Rajasthan. In that case, the petitioner is having a small child and that she pleaded difficulty in
going all the way from Jaipur to Bombay to contest the proceedings from time to time. Considering the distance and the difficulties faced by the wife, the Supreme Court has allowed the transfer petition.
In a decision reported in 2005 (12) SCC 395, the wife has sought for transfer of matrimonial proceedings and a divorce petition has been filed by the respondent's husband at Baikunthpur to be transferred to Allahabad, where the petitioner's wife was residing, on the ground that it would be difficult for her to undertake such long distance journey, particularly in circumstances, in which she finds that the proceedings under Section 125 Cr.P.C. was already pending before the Family Court, Allahabad. Considering the difficulties faced by the wife and also the long distance journey, the Honourable Supreme Court was pleased to order transfer of the proceedings to Allahabad.
4.Considering the contentions and the rival contentions of the respective parties and in view of the above pronouncements, this Court is of the view that the case of the petitioner deserves to be considered. The allegation of the respondent regarding life threat is untenable. Accordingly, this Transfer Civil Miscellaneous Petition is allowed and HMOP.No.50 of 2016 on the file of the Subordinate Judge, Pudukkottai is ordered to be transferred to the Principal Subordinate Court, Tambaram, forthwith. No costs. Consequently, C.M.P(MD)No.2711 of 2016 is closed.
Sd/- Assistant Registrar(co) /True copy/ Sub Assistant Registrar To 1)The Judge, Principal Subordinate Court, Tambaram.
2)The Judge, Subordinate Court, Pudukottai.
+1cc to Mr.S.Rajaprabhu, Advocate Sr.No.64092/16 +1cc to Mr.M.R.Sreenivasan, Advocate Sr.No.63264/16 nbi sm:KM:07/11/2016:3P/5C TR.CMP(MD)No.158 of 2016 25.10.2016